In Utah family court cases (divorce, child custody, etc.), you generally cannot wholly substitute affidavits or verified declarations for live witness testimony in contested matters. Even if the court allows such a written statement from a witness to be filed, the witness must still be available for cross-examination if the opposing party requests it.
“Why can’t my witnesses just submit affidavits/verified declarations instead of testifying?”
This is a reasonable-sounding question, a very common one.
Witnesses have jobs. Travel costs money. Sitting in a courthouse waiting to be called is inefficient. And testifying under oath, in public, under questioning, can be intimidating.
So why not just let witnesses write down what they would say and submit that to the court?
The Core Problem: Written Statements Can’t Be Cross-Examined
Under the Utah Rules of Evidence, a written statement offered to prove the truth of what it says is hearsay. See URE 801–802. Calling it an “affidavit” or a “verified declaration” does not change that.
Even when a hearsay exception might apply under URE 803 or 804, courts remain wary of relying on testimony that cannot be tested in real time. Why? Because credibility matters—and credibility cannot be assessed on paper.
That’s where URE 611(b) comes in. Utah courts are charged with controlling the mode of witness examination to make the truth-finding process effective. Cross-examination is not a procedural nicety; it is the mechanism by which reliability is tested.
Lawyer Translation:
If the other side can’t cross-examine your witness, the judge usually can’t rely on what that witness says—no matter how reasonable it sounds.
“But I’ve seen courts accept affidavits before…”
Yes. And this is where confusion sets in.
Utah family cases often move through three very different procedural stages, and affidavits play different roles in each.
Motion Practice and Temporary Orders
Under URCP 7, courts often decide motions based on written submissions. Temporary orders are frequently supported by affidavits or declarations.
This does not mean affidavits have replaced testimony. It means the court is making provisional decisions, often quickly, often with limited evidence, and often with the expectation that disputed facts will be tested later.
Affidavits/declarations here are tolerated—not because they are ideal evidence, but because the posture of the case allows some evidentiary looseness.
Evidentiary Hearings and Trials
Once the court is asked to resolve disputed facts in a meaningful way—custody findings, credibility disputes, allegations of misconduct—the rules tighten.
Affidavits/declarations may be submitted, but if the opposing party demands cross-examination, the witness must be produced. A written statement does not insulate a witness from questioning.
Hearings and trials are designed for live evidence, subject to objection, cross-examination, and credibility assessment. This is where URE 801–807 and URE 611 do their full work.
Even If the Court Accepts the Affidavit, the Witness Isn’t Excused
This is the part many people miss.
Even if the judge allows an affidavit or declaration to be filed, that does not mean the witness is off the hook. If the opposing party wants to cross-examine that witness, the witness must still testify—live, under oath or affirmation.
Courts will not allow one party to smuggle testimony into evidence while denying the other party the right to test it.
In practice, use of the affidavit/declaration saves a little time, but you may end up both filing the written statement and producing the witness.
Why Written Statements Must Be Sworn, Affirmed, or Verified at All
If a witness’s statement has any chance of being read or considered by the court as evidence, it must first clear the threshold question of admissibility. Unsworn or unaffirmed witness statements are not admissible evidence. An affidavit or verified declaration matters because it places the witness under oath or affirmation, subjecting the statement to penalties for perjury and signaling that the Rules of Evidence apply (URE 603 (oath or affirmation)). That does not make the statement sufficient, but it makes it eligible for admission. Without an oath, affirmation, or declaration made under penalty of perjury, the court has no lawful basis to admit the statement into evidence.
“But Testifying Is Stressful”
It can, that’s true. Courts know this. And it still doesn’t change the analysis.
Testifying is stressful because it matters. Allowing stress or discomfort to substitute for due process would quietly gut the adversarial system. That would not be a system built to find the truth. It’s would be a system built to reward presentation over reliability.
If courts excused live testimony whenever a witness felt intimidated, they would be inviting a system where unchecked assertions decide disputed facts. Cross-examination exists for a reason: without it, lies, exaggerations, selective omissions, and honest mistakes are far more likely to slip through uncorrected. On paper, a statement can sound clean, confident, and complete—even when it’s wrong. In contested cases, the court needs a process that makes inaccuracies harder to sustain, not easier.
Sidebar: What About Zoom or Remote Testimony?
Remote testimony can reduce travel time, missed work, and courthouse waiting. Utah courts increasingly allow it when appropriate.
But it does not change the fundamental requirement.
Remote testimony is still:
- live,
- oral,
- under oath,
- subject to real-time cross-examination.
Remote testimony solves logistics. It does not turn testimony into paperwork.
Myth vs. Reality
Myth: “An affidavit is evidence.”
Reality: Only if it survives hearsay rules and the right to cross-examination.
Myth: “Verified means untouchable.”
Reality: Verification does not replace adversarial testing.
Myth: “The judge can just read it.”
Reality: Judges cannot rely on untested testimony in contested matters.
Myth: “Stress is a legal reason to avoid testifying.”
Reality: It isn’t.
Reliability Comes Before Convenience
Utah courts do not require live testimony because they enjoy inconveniencing or intimidating witnesses. They require it because untested statements, however sincere, are unreliable. If a fact truly matters, someone may have to testify. There is no written workaround for that.
Utah Family Law, LC | divorceutah.com | 801-466-9277